State v. Harris , 2023 Ohio 1777 ( 2023 )

[Cite as State v. Harris, 2023-Ohio-1777.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-22-056
Appellee Trial Court No. 20220CR0010
v.
Harley Harris DECISION AND JUDGMENT
Appellant Decided: May 26, 2023
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
SULEK, J.
{¶ 1} Appellant, Harley D. Harris, appeals from the August 15, 2022 judgment
entered by the Wood County Court of Common Pleas, sentencing him to four years in
prison following his guilty plea to charges of domestic violence, abduction, aggravated
assault, and tampering with evidence. For the reasons that follow, the trial court’s
judgment is affirmed.
Statement of the Case and Relevant Facts
{¶ 2} On April 7, 2022, Harris was charged in a ten-count indictment for offenses
alleged to have occurred against the victim throughout the month of December 2021.
Count 1 charged him with aggravated menacing, a misdemeanor of the first degree.
Counts 2, 4, 5, 7, and 8 charged him with domestic violence, all misdemeanors of the first
degree, except count 8, which was a felony of the fifth degree. Counts 3, 6, and 9 charged
him with abduction, all felonies of the third degree. And count 10 charged him with
tampering with evidence, a felony of the third degree.
{¶ 3} Pursuant to a plea agreement, Harris pled guilty to all of the charges except
count 1, with count 8 amended to reflect a fourth-degree charge for aggravated assault.
{¶ 4} At the plea hearing, held on June 7, 2022, the state recited the following
facts underlying the guilty pleas:
[PROSECUTOR] * * * Your Honor, had the matter proceeded to
trial, the State would have proven the following beyond a reasonable doubt:
These events relating to count 2, 3, 4, 5, 6, and 7 all occurred on or about
December 1st through December 24th, 2021. The events occurred in
Walbridge, Wood County, Ohio at the [victim’s] residence. The State
would have established its proof through a series of Nest camera videos,
which is a camera that was depicting the living room at the Walbridge
residence.
2.
As it relates to count 2 and 3, the video would have depicted the
defendant screaming at [the victim], placing her in a full nelson, which was
restraining her liberty, placing her arms behind her head. She said, you’re
hurting me. So the restraint and liberty plus the pain, placing her in fear and
physical harm would constitute the abduction for that, as well as the
domestic violence charge that the State indicated count 2 and 3 would
merge at sentencing.
Count 4 is a separate video and a separate circumstance. That depicts
the defendant and [the victim] entering the residence, with the defendant
immediately enraged upon entering the residence. He does push her on to
the couch and begin screaming at her about bills, stating that bills don’t
mean anything to her, and slapping her in the face with mail and bills is
what it appears.
Count 5, is again, a separate video, a separate time. Again, pinning
the victim – the defendant pinning the victim onto the couch, slapping her
in the face, again this is depicted in the video, and screaming to her that she
should slap him in the face.
Count 6 and 7 – again, these are one course of conduct. But again,
count 6 and 7 involve strangulation, separate video, separate time, the
defendant screaming, I’m going to kill you. During this period, again, [the
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victim] is pinned underneath the defendant, so you have restrained of
liberty, being the strangulation, and/or placing her in fear and risk of
physical harm. So that would be both the domestic violence and the
abduction.
And again, we would note that all of this during this time frame
occurred between family and household members. These were two
individuals that were boyfriend and girlfriend and certainly cohabitating
with one another in the same home, living together.
Finally, with respect to counts 8, 9, and 10, each of these offenses
occurred on a specific date, an identified date of December 30th, 2021.
Walbridge Police did receive a 911 call from a neighbor that the defendant
was outside in the victim’s car, alleging that he had tried to strike her with
the car. The victim was pregnant at this time. The defendant knew she was
pregnant. Police did come. Police separated the parties. The defendant did
admit to pushing the victim onto the couch. And then you can see on the
video the pushing and him dragging her out of the house, dragging her
across the living room floor toward the doorway. This abduction is indicted
under a different section. There’s an (A)(1) and (A)(2). This abduction
would be use of force and removing her from the place she is found. So it’s
a separate section for the dragging her across the room and out the door.
4.
Again, there is physical violence that was mentioned with her being
pushed onto the couch while pregnant. There’s a stipulation as to a factual
basis for the aggravated assault charge. With respect to serious physical
harm, we would note that [the victim] did visit the hospital shortly after this
event.
And finally, the video shows the defendant ripping the camera down.
This is the day police were coming. This is the day police were called and
the defendant did rip the camera down, which the State would have
indicated would have impaired its ability to be used as evidence in a future
criminal proceedings [sic].
{¶ 5} At the sentencing hearing, held on August 9, 2022, the trial court heard from
counsel for both sides, the victim, and Harris. The victim stated that the events of
December 2021 were “traumatizing” to her. She further stated that her son was present
during some of those events and that, as a result, he “struggled.” Thereafter, the court
addressed Harris, stating, “I’m hoping you realize, that during the month of December of
2021 you, effectively tortured a person.”
{¶ 6} Still addressing Harris, the trial court proceeded to sentence him. After
finding that Counts 2 and 3 merged for the purpose of sentencing, the court imposed a
24-month term of imprisonment for the offense of abduction. On counts 4 and 5, the trial
court imposed a term of 180 days, each, with both sentences ordered to be served
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concurrently with any “felony time.” For count 6, which merged with count 7, the court
imposed a term of 24 months in prison. The court then stated that all of the terms for
counts 2 through 7 would be served concurrently.
{¶ 7} Next, the court imposed a term of 18 months in prison on count 8, and a
term of 24 months in prison on counts 9 and 10. It then ordered that the sentences for
counts 8, 9, and 10 would be served concurrently with one another, but consecutively to
the terms imposed for counts 2 through 7. Hall, therefore, received a total sentence of
four years in prison.
{¶ 8} The trial court articulated the reasons that it was imposing consecutive time,
beginning with the fact that there were multiple offenses demonstrating that Harris would
engage in harm to others. The court found that consecutive sentences were necessary
both to protect the public from future crime and to punish Harris. It further found that
consecutive sentences were not disproportionate due to the seriousness of Harris’ conduct
– “over 30 days of torturing another individual” – and due to the danger that he poses to
the public.
{¶ 9} The trial court additionally found that the offenses were committed while
Harris was on community control, and that they were committed as part of a course of
conduct whose purpose was “to torture the victim in this case.” The trial also court found
that “the harm caused was so great or unusual that no single prison term for any of these
offenses committed as part of the course[] of conduct adequately reflects the seriousness
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of [that] conduct.” Finally, the trial court found that Harris’ criminal history
demonstrates the necessity of imposing consecutive sentences. In making this finding, the
trial court erroneously used the term “community control,” instead of “consecutive
sentences.” Immediately after making this finding, the court clarified that it was
imposing the sentences “consecutively.”
{¶ 10} It is from this judgment entry on sentencing that Harris now appeals.
Assignments of Error
{¶ 11} Harris asserts the following assignments of error on appeal:
I. The trial court erred by making findings unsupported by the record
prior to imposing a consecutive sentence in the ODRC, pursuant to R.C.
2929.14(C)(4).
II. The trial court did not impose a sentence on Counts 2 and 7 at the
time of Appellant’s sentencing hearing.
III. Appellant’s judgment entry does not include sentences for
Counts 2 and 7.
Analysis
Consecutive Sentences
{¶ 12} Harris argues in his first assignment of error that the trial court did not
make the proper findings to impose consecutive sentences.
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{¶ 13} R.C. 2929.14(C)(4) requires a trial court to make certain findings before
imposing consecutive sentences. Specifically, the statute provides that a trial court may
impose consecutive sentences on an offender if it finds “that the consecutive service is
necessary to protect the public from future crime or to punish the offender,” “that
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public,” and that one of the following
circumstances exists:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
8.
{¶ 14} “[W]hen a sentencing court makes the statutory findings under R.C.
2929.14(C)(4) for consecutive sentences, it must consider the number of sentences that it
will impose consecutively along with the defendant’s aggregate sentence that will result.”
State v. Gwynne, --- Ohio St. 3d. ---, 2022 Ohio-4607, --- N.E.3d ---, ¶ 12.1
{¶ 15} Although the trial court is required to make the requisite findings both at
the sentencing hearing and in the sentencing entry, it is not obligated to state reasons in
support of its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 37. Further, although a “word-for-word recitation of the language of the statute is
not required,” a reviewing court must be able to discern that the trial court engaged in the
correct analysis and the record must contain evidence to support the trial court’s findings.
Id. at 29.
{¶ 16} Where a defendant challenges a trial court’s consecutive-sentence findings,
“R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the
findings underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’” Bonnell at
¶ 28, quoting R.C. 2953.08(G)(2)(a).
1
We will note that a motion for reconsideration was filed on January 3, 2023. That
motion is still pending.
9.
Clear and convincing evidence is that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but not to the
extent of such certainty as is required ‘beyond a reasonable doubt’ in
criminal cases, and which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶
22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio1002, 59 N.E.3d 1231, ¶ 22, quoting
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶ 17} In State v. Gwynne, the Supreme Court of Ohio recently explained that an
appellate court, when reviewing a trial court’s order of consecutive sentences, is not to
defer to a trial court’s findings, but instead is to act as a second fact-finder. Id., --- Ohio
St. 3d. ---, 2022 Ohio-4607 at ¶ 20. “An appellate court’s review of the record and
findings is de novo with the ultimate inquiry being whether it clearly and convincingly
finds – in other words, has a firm conviction or belief – that the evidence in the record
does not support the consecutive-sentence findings that the trial court made.” Id. at ¶ 27.
In performing this review, an appellate court is required to focus on both the quantity and
the quality of the evidence in the record that either supports or contradicts the
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consecutive-sentence findings.” Id. “An appellate court may not * * * presume that
because the record contains some evidence relevant to and not inconsistent with the
consecutive-sentence findings, that this evidence is enough to fully support the findings.”
(Emphasis sic.) Id. at ¶ 29. “[I]f, upon review of the record, the [appellate] court is left
with a firm belief or conviction that the findings are not supported by the evidence, the
appellate court must vacate or modify [the order of consecutive sentences.] Id. at ¶ 27.
When modifying a defendant’s consecutive sentences, an appellate court may alter the
number of consecutive sentences imposed. Id. at ¶ 12.
{¶ 18} In his assignment of error, Harris first mentions that the trial court
mistakenly referred to imposing community control sanctions at the sentencing hearing
when it stated, “Further, your criminal history demonstrates that you’ve – it is necessary
to impose these community control sentences.” From the context, it is clear that the trial
court simply misspoke and meant to say “consecutive” instead of “community control.”
Notably, the trial court correctly stated in its sentencing entry that “Defendant’s criminal
history demonstrates that consecutive sentences are necessary to protect the public from
future crime by the Defendant.” (Emphasis added.)
{¶ 19} Next, Harris asserts that the trial court’s judgment entry only references
R.C. 2929.14(C)(4)(b) in its findings. When imposing consecutive sentences, “the trial
court must make the requisite findings both at the sentencing hearing and in the
sentencing entry.” (Emphasis sic.) State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493,
11.
108 N.E.3d 1028, ¶ 253, citing Bonnell at ¶ 37. “However, a word-for-word recitation of
the language of the statute is not required, and as long as the reviewing court can discern
that the trial court engaged in the correct analysis and can determine that the record
contains evidence to support the findings, consecutive sentences should be upheld.”
Bonnell at ¶ 29. Here, while the trial court’s judgment entry only cites R.C.
2929.14(C)(4)(b), the trial court’s findings at the sentencing hearing and in the judgment
entry closely track the language of the statute and demonstrate that the court found R.C.
2929.14(C)(4)(a) and (c) to be applicable as well. The trial court was not required to
explicitly reference R.C. 2929.14(C)(4)(a) or (c) in its judgment entry.
{¶ 20} Furthermore, Harris does not contest the trial court’s findings under R.C.
2929.14(C)(4)(a) or (c), and the record reveals that those findings are supported by the
evidence. Specifically, the presentence investigation report confirms the trial court’s
determination that Harris was on probation in the state of Michigan at the time the instant
offenses were committed, thereby supporting the trial court’s finding under R.C.
2929.14(C)(4)(a). The presentence investigation report also makes clear that Harris has a
criminal record that goes back over ten years and includes breaking and entering and
theft. Thus, the record contains support for the trial court’s finding under R.C.
2929.14(C)(4)(c) that Harris’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by him. Consequently,
we do not have a firm belief or conviction that the record does not support the trial
12.
court’s findings under R.C. 2929.14(C)(4)(a) and (c). Therefore, the trial court did not
err when it imposed consecutive sentences under R.C. 2929.14(C)(4)(a) and (c).
{¶ 21} Finally, because only one R.C. 2929.14(C)(4) condition needs to be present
to impose consecutive sentences, it is not necessary to address Harris’s argument that the
record does not support the trial court’s finding under R.C. 2929.14(C)(4)(b). See State
v. Braswell, 6th Dist. Lucas No. L-16-1197, 2018-Ohio-3208, ¶ 44 (recognizing that only
one R.C. 2929.14(C)(4) factor needs to be supported by the record to affirm a trial court’s
imposition of consecutive sentences).
{¶ 22} For all of the foregoing reasons, Harris’s first assignment of error is not
well-taken.
Counts Two and Seven
{¶ 23} Harris asserts in his second and third assignments of error that the trial
court failed to impose a sentence for counts 2 and 7 that merged with other counts upon
which the state elected to proceed at sentencing.
{¶ 24} R.C. 2941.25(A) provides: “Where the same conduct by defendant can be
construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be convicted
of only one.”
{¶ 25} This statute “was enacted to protect a defendant from multiple punishments
or convictions for the same offense, the third protection under the Double Jeopardy
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Clause.” State v. Horn, 6th Dist. Wood No. WD-21-062, 2023-Ohio-138, ¶ 12. “A
conviction, for purposes of the allied-offense statute has been defined as a guilty verdict
combined with imposition of a sentence or penalty.” Id. “It is clear that a defendant may
be found guilty of multiple allied offenses; however, the offenses must merge at
sentencing to prevent a double jeopardy violation caused by the imposition of multiple
sentences for the same crime.” Id. “If the defendant has been found guilty of allied
offenses, the trial court must direct the prosecutor to elect an offense to pursue for
sentencing, and then impose a sentence that is appropriate for the state’s chosen offense.”
(Emphasis added.) State v. Berry, 6th Dist. Lucas No. L-19-1275, 2021-Ohio-2249, ¶ 26.
{¶ 26} At the plea hearing, the state recognized that counts 2 and 7 merged for
purposes of sentencing with counts 3 and 6, respectively. The state elected to proceed to
sentencing on counts 3 and 6. Under R.C. 2941.25(A), therefore, the trial court lacked
authority to impose a sentence on Counts 2 and 7.
{¶ 27} Accordingly, Harris’s second and third assignments of error are found not
well-taken.
Conclusion
{¶ 28} The trial court properly imposed consecutive sentences in this case, and it
did not err in failing to sentence Harris for the findings of guilt that merged for purposes
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of sentencing. The judgment of the Wood County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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